Testing boundaries of abortion clinic buffer zones

Massachusetts has replaced its 35-foot abortion clinic “buffer zone” with a new law intended to withstand Supreme Court scrutiny.

But the issue of how far protesters must stand from abortion clinics and the women entering them is still a topic of heated debate in other states and cities around the country that have banned protesters from approaching clinics to ensure patients’ access but in the process raised concerns about free speech.

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The court’s ruling in McCullen v. Coakley has invigorated groups opposed to abortion and frustrated those that support abortion rights. The Alliance Defending Freedom, which argued the Massachusetts case, has sued New Hampshire over its new law with a 25-foot buffer zone and filed a court brief opposing a Madison, Wis., measure banning protesters from approaching people without permission within 100 feet of a medical center.

“There are a lot of places where there could be new challenges,” said Matt Bowman, the alliance’s senior legal counsel. “All of those laws are in deep constitutional trouble because the Supreme Court said that you can’t punish speech … and all those laws do that.”

On Wednesday, Democratic Gov. Deval Patrick signed a bill that Massachusetts lawmakers quickly passed after the high court ruled that the state’s provision unconstitutionally restricted free speech. Rather than preventing protesters from coming within 35 feet of a clinic, the new statute allows police to temporarily move protesters 25 feet away if at least two try to block an entrance.

Advocates for the law say they’re confident it will stand up to any constitutional challenge while ensuring women have access to abortion. “I think this Massachusetts law can be a road map for states across the country that need to protect women’s safe access,” Massachusetts Attorney General Martha Coakley declared.

Elsewhere, state and local officials are still trying to determine whether their own buffer zones would pass muster with the courts. Sixteen cities and three states have such laws on the books, according to the National Abortion Federation, the membership group for abortion clinics. Abortion rights advocates like Planned Parenthood President Cecile Richards expect the court ruling to affect about half a dozen laws. Several jurisdictions already have scrapped their “buffer zone” provisions or agreed to delay enforcement.

“Any entity with a buffer zone law is probably looking at it and thinking about whether they need to tweak it — whether that means showing it’s necessary or modifying the law,” said Leslie Kendrick, a University of Virginia law professor and First Amendment expert.

Like the original Massachusetts measure, some of the local laws define a specific space around abortion clinics as only for the individuals entering them. Others create “bubble zones,” typically within 8 feet of clinics, that prohibit people from approaching others without permission.

The Supreme Court’s narrow ruling in June suggested that such measures could still be acceptable if the areas involved were relatively small.

The decision immediately put at risk the 39-foot buffer zone around the only abortion clinic in Portland, Maine, and this month the City Council scrapped the ordinance. City officials in Burlington, Vermont, have opted to stop enforcing their 35-foot law.

In Madison, officials reconsidered their initial assessment that the court’s ruling wouldn’t affect their law. They subsequently said they wouldn’t enforce it.

And the 25-foot zone that was supposed to take effect in New Hampshire is on hold, too. That announcement by the state attorney general prompted a federal judge to put off arguments in a legal challenge.

Yet other officials are reaffirming existing buffer zones, especially if they’re smaller than 35 feet. Pittsburgh officials are continuing to enforce a 15-foot buffer zone, while the New York attorney general has said a similarly sized buffer zone remains in effect in New York City and 22 of the state’s counties.

Massachusetts Family Institute President Andrew Beckwith, whose group opposes the Massachusetts law signed Wednesday, said he doesn’t know of any concrete plans to challenge it. But he’s talked to attorneys who are looking at that possibility.

“This was forced on us so quickly, we’re still in the assessment phase,” Beckwith said.

At the National Abortion Federation, communications director Melissa Fowler noted that the Supreme Court made clear its ruling applied to only the Massachusetts law — and didn’t specify how it might judge other laws. “It really remains to be seen how [the ruling] will be interpreted,” she said.

The court has already weighed in on bubble zone laws, in 2000 upholding a Colorado measure banning people from approaching others without permission within 100 feet of a clinic. But some say those laws can be harder to enforce since they allow protesters to move about more freely.

“We were like basketball referees, watching people’s hands and feet,” said Coakley, referring to an earlier Massachusetts bubble zone statute.

Law professor Kendrick called buffer zones “a blunt instrument” and said bubble zones are “a little more nuanced.”

“You have more opportunity to be there with a bubble zone as long as you’re not going up to people who would prefer not to be approached,” she said.

Those laws generally allow protesters to approach those entering the clinic as long as they get permission. But abortion opponents say that still limits their efforts to dissuade women from getting an abortion.

“You can’t hand a leaflet to someone 8 feet away; no one’s arms are that long,” Bowman said. “Especially on a busy street, you can’t have a quiet conversation with someone.”

Ultimately, any challenge to a current law will most likely be decided by lower courts on a case-by-case basis, legal experts say. Whether elected officials decide to back away from these measures or defend them in court could have a lot to do with political considerations.

“I think a lot of it will depend on what they think the likelihood is in their jurisdiction for a challenge,” Kendrick said. “[And] how willing the state would be to defend the law.”